COLUMBIA, S.C. (Legal Newsline) – A South Carolina Bar official points to a statute in the state’s Code of Laws explaining that retired judges or justices may preside in certain courts – even after reaching the mandatory retirement age of 72 – as the reason for Judge Jean Hoefer Toal’s present, part-time service on the bench at the age of 81.
When asked about Toal’s ability to continue in her role as a jurist, Sarah L. Justice, Communications Director for the South Carolina Bar, referenced Section 14-1-215 of the South Carolina Code of Laws, for the answer.
“A retired judge or justice from the Supreme Court, court of appeals, or circuit court of this State may be assigned by the Chief Justice of the Supreme Court to preside over any official proceeding in any circuit court of this State. A retired judge or justice from the Supreme Court or court of appeals of this State may be assigned by the Chief Justice of the Supreme Court to act as an associate justice or judge in any proceeding before the Supreme Court or court of appeals. A retired judge from the family court of this State may be assigned by the Chief Justice of the Supreme Court to preside over any official proceeding in any family court of this State,” according to the statute.
“In order to be eligible to be appointed by the Chief Justice to serve, any retired justice or judge of this State must have been reviewed…and found by the commission to be qualified to serve in these situations within two years of the date of their appointment to serve, except that if a justice or judge retired before the expiration of their then current term, no further review of that justice or judge is required until that term would have expired.”
Toal, who has practiced law for 56 years, is a legend in South Carolina jurisprudence whose career was highlighted in Madam Chief Justice, a collection of essays released in 2015.
Toal was a Democratic member of the state legislature from 1975 until her nomination and election by that body in 1988 as an associate justice to the South Carolina Supreme Court, becoming the first woman to hold the role.
In 2000, she was elected by the legislature as the first female Chief Justice, a role she held until the end of 2015, when she reached South Carolina’s mandatory judicial retirement age of 72.
Such a retirement age falls squarely in the middle of a range of that statistic, when compared to the judiciaries of other countries. These include Ethiopia at age 60, Austria and Barbados at age 65, Lebanon and Singapore at age 68, Australia, Belgium, England, Ghana, Jamaica, Japan, Kenya and New Zealand at age 70 and Brazil, Canada and Chile at age 75.
Subsequent to her initial retirement at 72, Toal was chosen to serve as a special, part-time circuit court judge in the Richland County Judicial Center, earning a six-figure yearly state retirement wage and overseeing a regular asbestos docket which generates five trials each year.
Critics of her jurisprudence have alleged a ruling bias towards plaintiffs.
Toal has returned on two occasions to hear cases on the South Carolina Supreme Court, since retiring from that body at the close of 2015.
In late 2023, Toal was also appointed to decide whether infamous convicted murderer Alex Murdaugh, subject of Netflix documentary Murdaugh Murders: A Southern Scandal, was entitled to a new trial.
In a 2023 questionnaire for the South Carolina State Legislature’s Judicial Merit Selection Commission, an organization which screens judges, Toal wrote that she has remained a “Senior Active Retired Judge.”
“I have very much enjoyed serving as a Senior Active Judge. I have served as an Acting Circuit Court Judge for each year since I retired. At the appointment of Chief Justice [Donald W.] Beatty, I have managed the asbestos docket for many years. I have managed to trial or settlement at least 500 cases,” Toal wrote in the questionnaire.
Toal also noted she received appointments from U.S. District Judge Richard M. Gergel and U.S. District Judge Donald C. Coggins to serve as a mediator and arbitrator, for which she earned $52,800 from 2020-2022.
In recent months, Toal has been criticized for her oversight of U.K. mining companies Anglo American and its De Beers diamond unit over asbestos claims, since those firms have never done business in South Carolina.
Known for imposing strict sanctions against defendants who challenge her, defense attorneys have sought Toal’s recusal, citing perceived bias in favor of plaintiffs, and have attempted to remove cases from Richland County to a South Carolina federal court. All such efforts have been unsuccessful.
Toal’s controversial appointment of personal injury attorney Peter Protopapas has him overseeing claims against Cape Plc, a former South African asbestos company, with extensive powers to pursue documents and third-party claims, including against Anglo American.
Meanwhile, defense counsel have argued allegations that Anglo American owes a share liability for asbestos cases are without merit.
Toal, pointing to Cape Plc’s refusal to respond in court, has repeatedly rejected arguments that she lacks jurisdiction over the foreign companies involved.
“I want to find a reasonable way to move this trial forward at this point,” Toal said at a hearing in Columbia, S.C. in recent days.
Before making that move forward, Toal had overruled defense objections seeking additional information on the point of jurisdiction.
Prior to leaving the state’s high court in 2015, she faced scrutiny for hit-and-run property damage incidents in 2001 and 2007, with the Commission on Judicial Conduct clearing her of ethical wrongdoing in the first incident, while the status of the second from 2007 is unclear.
While serving as Chief Justice of the South Carolina Supreme Court in 2014, Toal received about $131,000 in “retire-in-place” benefits, which allow for senior judges in South Carolina to collect retirement pay while still earning their full salaries.
This practice was permitted by state law, which allows eligible judges to receive separate paychecks totaling 90% of their six-figure salaries, while keeping their retirement income confidential.
Critics, such as The Nerve, have called attention to what they feel is the South Carolina Judicial Department’s lack of transparency regarding such benefits for judges.
The outlet also reported critically on over 70 judges who attended expensive conferences funded by special-interest legal organizations, yet the records of these trips were not made publicly available on the department’s website – but it was not known if Toal was on that list.